Aadhaar [Day-7 Session-2] Coercively Imposing Only One Proof Of Identification And To Link Such Proof To Entitlements Not Acceptable: Kapil Sibal

As the Aadhaar hearing resumed post the lunch hour on Tuesday, Senior Counsel Kapil Sibal commenced his submissions- “The Aadhaar Act is for the citizen what the Right to Information Act is for the government”.

“There is no technology that is fool proof or free from loopholes”, he commented.

“Are you suggesting that the use of all technologies should be abandoned?”, asked Justice A. K. Sikri.

“No. But the Aadhaar case is different as the technology envisaged under the project contemplates the transmission of sensitive data. I agree with the recent statement of PM Narendra Modi that one who controls data has the power of world domination. It is for the same reason that the need to patent inventions arises. Information is the major asset of big corporations like Uber and Google”, replied Mr. Sibal.

“It is the mandate of Article 21 that any State measure must be reasonable, substantively as well as procedurally. But to compel citizens to part with their fingerprints without the reciprocal promise of security is not reasonable. Also, to coercively impose only one proof of identification and to link such proof to entitlements is not acceptable”, he continued, citing the Supreme Court nine-judge bench judgment in Ahmedabad St. Xavier’s College Society v. State of Gujarat (1975).

The Senior Counsel iterated that biometrics maybe an effective mode of proof in the western countries which are mono-racial or biracial, but in India, the rate of authentication failures are high.

“Unlike the USA, all State measure in India have to adhere to the spirit of the Constitution, particularly Articles 14, 19 and 21. If such comprehensive data over the lifetime of an individual is gathered and retained under the Aadhaar project, the right against self-incrimination under Article 20(3) stands infringed”, he continued.

Thereupon, Mr. Sibal proceeded to give a bird’s eye view of the concerns- sensitive personal data must not be placed in the digital space without adequate safeguards considering that the electronic space is riskier than the physical world; to attain such a high level of safety in the digital space is almost impossible; once the confidential data has been placed in the electronic space, it cannot be undone; the digital space may be of benefit for an informational economy, but its transformation into an informational polity shall have repercussions on the Fundamental rights.

“Section 3(1) of the Aadhaar Act of 2016 uses the words ‘shall be entitled’, but section 7 of the Act makes Aadhaar mandatory.” Also, persons enrolled prior to the coming into force of the Act have not undergone counselling as contemplated in section 3(2)”, commented Mr. Sibal.

“It is mandatory only in respect of ‘Subsidies, Benefits and Services’ that are connected to the Consolidated Fund of India”, said Justice D. Y. Chandrachud.

“That is my point. Section 57 is absolutely unconstitutional”, said Mr. Sibal, adding that parallel laws like the Income Tax Act of 1961 and the Money Laundering Rules of 2017 have also mandated Aadhaar.

In respect of the Money Laundering Rules, Justice A. K. Sikri later remarked, “The government seems to be acting on the presumption that each citizen is a money launderer”.

“Section 8 requires a ‘requesting entity’ to procure the consent of the citizens before gathering data. But where is the question of consent when biometric Authentication is mandated for every transaction? Where is the question of consent so far as minor children are concerned?”, remarked Mr. Sibal.

“Who is a ‘requesting identity’? The definition in section 2(u) is very wide”, asked Justice Chandrachud. Mr. Sibal referred to Schedule ‘A’ appended to the Aadhaar (Authentication) Regulations of 2016 on the eligibility criteria for the appointment of ‘requesting entities’.

Relying on section 8(3)(c), Mr. Sibal tried to advance that Aadhaar is not mandatory in view of the ‘alternatives to submission of identity information to the requesting entity’.

Further, he referred to Regulation 26 of the Authentication Regulations to indicate that it is ‘metadata’ that actually reveals all information about an individual and strikes at Article 20(3).

He submits that though under Regulation 28, an individual is entitled to access their authentication data only for a period of 6 months, the information is archived for the perusal of the State for 5 years under Regulation 27.

“If the State compels WhatsApp or Google to divulge information about an individual, it requires a judicial order to that effect. But Aadhaar does away with that requirement. Also, Google, WhatsApp, Twitter etc.. afford the opportunity of opting out. That is not the case with Aadhaar”, advanced Mr. Sibal.

“But in today’s world, similar information is also being consensually shared with private entities”, commented Justice D. Y. Chandrachud.

“The State cannot be compared to private players like Google, WhatsApp etc. There are alternatives to these players. Even within their structure, there are means of controlling and selecting. Besides, Google utilises the data to provide me benefits, while Aadhaar curtails the same”, Mr. Sibal advanced.

Moving on to Regulation 28 of the Aadhaar (Enrolment and Update) Regulations of 2016 dealing with circumstances in which the UIDAI may deactivate an Aadhaar number, he submitted, “what is going to happen in the duration before the erroneous deactivation of the number is rectified, particularly in rural areas?”, adding that the Regulation also entitles the UIDAI to deactivate numbers in any case ‘as deemed appropriate by the Authority’.

“The mere possibility of the misuse of a legislation cannot be the ground to strike it down as unconstitutional”, remarked Justice Chandrachud.

Mr. Sibal quoted a news report published in the Business Standard on Tuesday regarding the linkage of Aadhaar with digital payments.

“The constitutional validity of a statute has to be adjudicated generally and not on the basis of particular instances”, said Justice Chandrachud.

“How does the Court determine what extent of power conferred by the statute poses a risk? Does this question even fall within the Court’s jurisdiction or is it for the legislature to decide?”, inquired Justice Chandrachud.

The hearing shall continue on Wednesday.